In Part 8 of this series of interactive articles, we outline the key developments and anticipated trends in the disputes landscape over the next 12 months. 

Prediction

Tikanga Māori will increasingly play a part in a wide range of litigation, including commercial disputes.

Why?

The Supreme Court’s landmark 2022 decision in Ellis v R affirmed tikanga Māori as an independent system of law and confirmed its status as the ‘first law of the land’. It will continue to influence, where appropriate, our distinctive common law and the interpretation of statute. It will also, at times, be the source of rights, duties and obligations.

The importance of tikanga to New Zealand law was further confirmed in 2023, with the release by Te Aka Matua o Te Ture | Law Commission of He Poutama - its study paper on the role of tikanga Māori concepts in state law (statute and common law) (you can read our series on He Poutama here). 

We are now beginning to see the courts apply tikanga in a wide range of disputes. Particular areas to watch include:

• Customary marine title: Late last year, the Court of Appeal released its first substantive judgment on an appeal under the Marine and Coastal Area (Takutai Moana) Act 2011. The Court held that tikanga is a key consideration when determining who holds customary marine title (CMT). You can read our summary of the decision here. The High Court must now redetermine two areas of CMT in light of the appeal judgment and we expect to see a number of additional cases in this area in the next 12 months. The substantive appeal is now before the Supreme Court. 
• Environmental law: the courts now generally understand the environmental issues raised by Māori from this tikanga-based ‘relational’ (whakapapa-based) point of view and have increasingly emphasised that, when required to do so, decision-makers must engage with tikanga and endeavour to understand it from a Te Ao Māori perspective. [eg Trans-Tasman Resources Ltd]. The High Court has observed that the Resource Management Act 1991 is “replete with kupu Māori”, and that “Parliament plainly anticipated that… decision-makers will be able to grasp these concepts and where necessary, apply them in accordance with tikanga Māori”. [Ngāti Maru Trust v Ngāti Whātua Ōrākei Whai Maia [2021] 3 NZLR 352, at [64]]
• Judicial review: tikanga may be relevant to various grounds of judicial review, including illegality and legitimate expectation. A useful illustration is the 2023 judgment in Hart & Ors v Director-General where the High Court held that the decision of the Department of Conservation to allocate taonga (being whale bones) to one of two tangata whenua groups was both a breach of the principles of te Tiriti o Waitangi and of legitimate expectation. The Court held that the ultimate remedy - entitlement to the jawbones - must be left to be determined through a tikanga-consistent process. The Court stressed that it was not appropriate in these circumstances for the Crown to allocate taonga and determine who is kaitiaki. Those matters must be resolved by iwi themselves, guided by tikanga. This deference to tikanga was a notable continuation of the trend set in Ellis v R and Ngāti Whātua ō Orakei v Attorney-General, where the Courts have deferred the final determination to tikanga, involving experts in Court or tikanga-based resolution processes.
• Commercial disputes: the extent to which tikanga will become relevant to commercial disputes remains to be seen, but there is certainly scope for it to be applied in litigation involving commercial arrangements relating to land or other taonga (such as water or intellectual property) specific to a Māori entity and contracts with or between Māori entities. 
• Evidence: As He Poutama notes, the Supreme Court’s decision in Ellis v R demonstrates that the rules of evidence are intimately connected with the development of tikanga and the common law. At this stage, tikanga is usually established through expert evidence. The recent Law Commission report on the Evidence Act, suggests that reliance on evidence to establish tikanga will continue at for the moment. This means that litigants in cases where tikanga is at issue will need to instruct appropriate expert witnesses. 
• Climate change: Earlier this year, in its judgment on the high-profile Smith v Fonterra climate change case, the Supreme Court foreshadowed that the trial court will have to engage with tikanga when considering the impacts of carbon emissions, including conceptions of loss that are neither physical nor economic. You can read our report on the judgment here.
• Procedural changes: He Poutama proposes a number of strategies for judicial engagement with tikanga and for enhancing processes for tikanga dispute resolution. These include appointing pūkenga/mātanga (experts) to assist with disputes about the meaning and effect of tikanga, creating a specialist tikanga panel in the High Court, providing for the appointment of Pūkenga/Mātanga as Commissioners of the High Court, expanding the jurisdiction of the Māori Land Court and using arbitration as a binding dispute resolution process that can be customised to use tikanga as the governing law and facilitate a more tikanga-consistent procedure.

What it means for you 

Parties to litigation will increasingly need to be prepared to provide or respond to evidence of tikanga, including by instructing expert witnesses. In many cases, this will add additional complexity and costs.

Parties wishing to avoid litigation can reduce their risk by thinking about tikanga before a dispute begins, including at the time a contract is formed. This will particularly be the case where the contract is with a Māori commercial entity. Things to think about if and how to record relevant tikanga principles, what they mean for the conduct of the contract and whether tikanga will require any modifications to the standard dispute resolution procedure – or a completely bespoke approach.

Get in touch

For more information please contact our Tikanga Māori experts below.